The links below are to articles reporting on the latest news regarding Audible Captions and the controversy surrounding that initiative by Amazon. Note, the latest articles are at the top.
Copyright law sometimes allows you to use someone else’s work – as long as it’s fair. In Australia this is called “fair dealing”, and it’s different to the law in the US, which is called “fair use”.
These exceptions are safety valves in copyright law – they allow lots of beneficial uses that society has agreed copyright owners should not be able to charge for, or worse, prevent.
There’s a serious ongoing debate about whether Australia should update its copyright laws and introduce fair use. The current law is not easy to understand – our research shows that Australian creators are often confused about their rights – and many think we already have fair use.
Fair dealing: What can you do in Australia?
The key difference between “fair use” and “fair dealing” is that Australia’s “fair dealing” laws set out defined categories of acceptable uses. As we will see, “fair use” in the US is much more flexible.
Australian copyright law sets out five situations where use of copyrighted material without permission may be allowed:
research or study
criticism or review
parody or satire
reporting the news
provision of legal advice.
We’ll explain the first four, as they’re most useful to the average Australian.
Research or study
You do not need permission to copy a reasonable portion of copyrighted material if you are studying it or using it for research. You do not have to be enrolled in school or a university course to rely on the research or study exception.
For example:
you can make a copy of a chapter of a book to study it
you can print or take screenshots of content you find on the web for your research
you can include quotes or extracts of other work when you publish your research.
The main thing to watch out for is how much you copy. It’s fair to photocopy a book chapter but not the whole book.
Criticism or review
It is lawful to use a work without permission in order to critique or review it.
Criticism or review involves making an analysis or judgement of the material or its underlying ideas. It may be expressed in an entertaining way, or with strong opinion, and does not need to be a balanced expression to be fair.
For example, a film critic does not need permission to play a short clip from a film they are reviewing. They may also use film clips from other movies to compare or contrast.
Ozzy Man Reviews runs a popular channel that reviews existing material, relying on the fair dealing exceptions.
It’s also legal to quote an excerpt of a book or song lyrics, or to reference a photograph in another publication as part of a review or critique of the work.
You need to be really critiquing your source material. So, for example, a review video that is really just the highlights of a film or show probably won’t be fair.
This is something that tripped up Channel 10 in its clip show, The Panel. When the panellists discussed and critiqued the clips they showed, it was generally fair dealing. But when they just showed clips that were funny, a court found them liable for copyright infringement.
Reporting the news
You don’t need permission to use existing copyrighted material while reporting on current or historic events. The law is designed to ensure that people can’t use copyright to stifle the flow of information on matters of public interest.
The key issue to check here is whether a work has been used in a way that is necessary to report the news. If the material is just used incidentally, to illustrate a story or provide entertainment, it won’t count as fair dealing.
Parody or satire
It is legal to use another person’s copyrighted material without their permission to make fun of them, or to make fun of another person or issue.
Making something funny is not sufficient to rely on this exception. The use must be part of some commentary (express or implied) on the material or some broader aspect of society.
FriendlyJordies is known for his satirical videos that comment on and criticise politics and everyday life in Australia.
When is a use ‘fair’?
Fair dealing only applies when the use is “fair”.
When assessing fairness in Australia, there are a number of relevant considerations, including:
how important copying is to your work (“nature and purpose of the use”)
the type of work being copied (less original works may not be protected as strongly as more creative works)
whether it is easily possible to get a licence within a reasonable time at an ordinary commercial price
the effect of your copying on the potential market for the original
the amount taken from the original work
whether attribution has been given to the original author.
Generally, a use will be fair if you are copying for a valid reason, you don’t copy more than you need, you give attribution where possible, and your work is not directly competing in the market against the original.
Things to remember:
Is copying necessary? Copying has to be necessary for one of the purposes above. This means that it might be fair to copy part of a song to review it, but it won’t be fair if you’re just using the song as background music.
Copy no more than you need. Sometimes you need to copy the entirety of an existing work – if you’re critiquing a photograph, for example. Usually, though, you should only copy the parts that are necessary. You can’t get away with showing a whole TV episode in order to critique one scene.
It’s usually not fair if you’re competing with the original. This is often the most important factor. When you copy existing material for your own study, to report on the news, or to create a parody, you usually won’t be undercutting the market for the original. But if you’re just repackaging the original material in a way that might substitute for it – a consumer might be satisfied with your work instead of the original – then your use probably won’t be fair.
How is ‘fair use’ different – what can’t you do with fair dealing?
In the United States, the law is more flexible, because it can adapt to allow fair use for purposes that lawmakers hadn’t thought of in advance.
Some of the things that are legal without getting permission in the US but not in Australia include:
Adapting to new technologies: Fair use is flexible enough to adapt to change, but fair dealing is not. For example, in the US, fair use made it legal to use a VCR to record television at home in 1984. In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete.
Artistic use: In Australia, it’s legal to create a parody or a critique, but not to use existing works for purely artistic purposes. For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new.
Machinima uses game environments to create new stories – but is not legal in Australia without permission from the game’s publisher.
Uses that document our experiences: Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way. Without fair use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.
In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song. She was able to get it put back up under US fair use law – but an Australian wouldn’t have that right.
Stephanie Lenz’s “dancing baby” video is legal under US “fair use”, but would likely infringe copyright in Australia.
Technical and non-consumptive uses: The internet we love today is built on fair use. When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on fair use.
Under Australian law, even forwarding an email without permission could be an infringement of copyright.
It’s been suggested that introducing fair use here would provoke a “free for all” use of copyrighted work, but that hasn’t happened in the US. In fact, some of the same major studios that oppose fair use in Australia are at pains to point out that they support fair use in the US because it is vital to commercial production that happens there.
The Motion Picture Association of America, for example, says that “Our members rely on the fair use doctrine every day when producing their movies and television shows”.
To put it simply: we don’t think that fair use will harm creators.
The “fair” in fair use means that it’s not about ripping off creators – it mainly allows uses that are not harmful. But we do think that fair use would provide an important benefit for ordinary Australians – both creators and users.
Katherine Gough, a musician and law student at Queensland University of Technology, co-authored this article.
It’s a move that appears to have been designed to avoid some of the controversy of the copyright wars by releasing the report just before most Australians settle into their summer break.
The report does something that is very difficult in copyright debates: it sets out a rigorous, evidence-based case for reform. Academics have praised the “independent and systematic study that has assessed the effectiveness, efficiency, adaptability and accountability of Australia’s IP [intellectual property] laws”.
Good evidence about how well intellectual property laws are working is sometimes hard to come by. Intellectual property laws, including copyright and patent law, have to be very carefully calibrated. If they are too weak, it is difficult for investors to recoup their expenses in bringing new inventions, books, music and films to the market.
But when intellectual property laws are too strong, they restrict innovation and access to knowledge. They prevent people from making new inventions and creating new works, because access to existing materials becomes too expensive or difficult.
The Productivity Commission’s report is important because it reviews the available evidence and provides recommendations that we have good reason to think will improve Australia’s intellectual property laws.
After reviewing the evidence, the Productivity Commission’s view is that copyright law is not balanced, and that our laws:
[…] are skewed too far in favour of copyright owners to the detriment of consumers and intermediate users.
Making Australian copyright law ‘fair’
Probably the most significant – and controversial – recommendation is that Australia should introduce a “fair use” exception for copyright infringement.
Fair use allows people to use copyright material in ways that are fair, without asking for permission first. It has been extremely important in the United States for many different industries.
The Productivity Commission’s report is just the latest in a string of reports to recommend that Australia introduce a fair use exception. It found that Australia’s current exceptions to copyright:
[…] are too narrow and prescriptive, do not reflect the way people today consume and use content, and do not readily accommodate new legitimate uses of copyright material.
Balancing intellectual property laws is a thrilling challenge. J Mark Bertrand/Flickr, CC BY-NC-ND
Other recommendations
The report is detailed and comprehensive, and covers a lot of ground. The Productivity Commission recommended a raft of other changes to modernise Australia’s copyright laws, including:
preventing copyright owners from overriding consumer rights through restrictive contractual agreements
allowing Australian consumers to break digital locks on content that prevent lawful activities (like fixing a tractor)
fixing a decade-long oversight in our “safe harbour” regime that makes it extremely difficult for home-grown equivalents of YouTube or social media platforms to host content in Australia
ensure that the results of publicly funded research are made freely available to the public under Open Access policies
remove an exception from competition law that allows software and content companies to create exclusive deals and other restrictive licensing agreements that would otherwise be anti-competitive.
Restarting the copyright wars
The timing of this report seems to be designed to minimise some of the controversy that it will generate. The commission’s report warns that it will be extremely difficult to “pursue change in the face of strong vested interests”.
The Copyright Agency, the Australasian Performing Right Association and the Australasian Mechanical Copyright Owners Society (APRA AMCOS), prominent players in the book industry and several authors have all issued statements that are highly critical of the commission’s report.
Their essential concern is that the expansion of user rights will result in reductions in revenues and investment in Australian creative industries and Australian creators.
The great difficulty here is that copyright law is extremely complex, and the debate is so emotive that the details often get lost in the heated arguments. What little empirical evidence we do have to guide policy is glossed over in a strong reaction against change.
The reaction of the established copyright industries is understandable. It has been very difficult for publishers and distributors to adapt to the internet, and they are only now beginning to develop business models that work in the digital age. The process has been painful to say the least.
In this context, many publishers, distributors, and creators feel besieged by efforts to reform copyright law for the digital age. But it is too late now to go back to a pre-digital world.
The restrictions on parallel importation, which have kept prices high for books in Australia, are a good example of laws that just don’t work for digital markets. If we expect consumers to obey copyright rules, it is clear that we need to work to make sure that the law and business models treat them fairly.
The great shame about the copyright wars is that sensible, evidence-based proposals for reform get mixed up with highly emotive reactions to “piracy”. The proposals by the Productivity Commission are careful and well justified. The evidence we have is that they are not likely to harm the actual revenues of Australian creators.
There is no doubt that we need new business models – and public funding – to support creators in the digital age. This is the hard work of real practical change that needs to happen to enable our creative industries to thrive.
The good news is that overseas examples show that it is possible for creators to make money in the digital economy. The Productivity Commission’s recommendations are a bet that digital is the future, and that making Australia’s laws more efficient and effective is critical to the health of our future industries.
We’re looking forward to the government’s plans to implement these recommendations, but it looks like 2017 will be a heated year for copyright debates.
Google’s efforts to scan millions of books for an online library have passed another legal hurdle with the United States appeal court agreeing earlier this month that the search-giant’s Google Books project does not violate copyright law.
The appeal judges’ ruling supports an earlier district court ruling two years ago. The case was brought by the Authors Guild, which argued that Google’s initiative constituted copyright infringement and could deprive authors of revenue.
But Google has successfully argued that its efforts could actually boost sales by making the text of books searchable, making it easier for people to find published works.
This latest outcome came without much surprise in the US, and the ruling is consistent with the earlier court rulings on fair use. The Authors Guild plans to appeal the case before the US Supreme Court but it is unlikely that it would succeed.
Google Books and Australia
The Google Books decision is based on a so called “fair use” doctrine which means that everyone can use copyrighted works free as long as the use falls under a particular definition of “fair”, including for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. But such broad and flexible doctrine does not exist in Australia or in most other countries, including Europe.
Instead, Australian copyright law contains narrower and more specific “fair dealing” exceptions as well as a few even more narrowly defined specific copyright exceptions.
It is unlikely that the Google Books project would fall under any of these exceptions. This means that if Google is sued in Australia for the same Google Books project, it is likely to lose the battle. Due to much stricter European copyright laws, a few years ago Google lost a case on Google Books in France.
On the other hand, Australian laws are more flexible than French ones and Australian courts may be as well able to find in favour Google. In short: the legal situation of Google Book still remains uncertain in Australia.
How Google Books works
It is worth clarifying here that not everything that can be found on Google Books website was digitised and made accessible by Google for free and without the permission from the copyright holders.
If you can access chapters from a book, it means that Google has got permission from the publisher of the book to do so (and maybe agreed to remunerate the publisher – hence the author(s) – for this too).
It is only when Google does not have an agreement with the publisher, it takes a risk to digitise the book but then only show snippets of the text. This can be a few lines or a short paragraph where the search terms can be seen.
The US appeal court’s decision on Google Books confirmed that the use of snippets (but not chapters or full books) is fair use.
Google Books is an innovative and useful service but the question is whether Google should pay authors and publishers for its use of their work.
The Australian Law Reform Commission (ALRC) proposed last year that Australia follow the US and introduces a fair use doctrine.
Accepting fair use in Australia would mean that Google is free to digitise all Australian books for free, put the text in its search engine and allow users to view at least snippets from the books.
Australian authors argue that fair use would further worsen their financial situation that is already rather miserable. As a result, government has not shown any signs in taking up this proposal.
It is true that fair use doctrine has its own risks. For many it looks open, flexible and seems to welcome innovative services such as Google Books. On the other hand, it creates even more uncertainty for those who want to rely on it.
What use is fair? Each particular case needs to be checked in court, but Australian courts do not have years of experience in applying fair use, as US courts do.
Alternatives to fair use
If fair use is not a perfect solution, what could be a compromise? This is a question with no easy answer.
Instead of fair use, European academics suggest reviewing the existing copyright exceptions and adding one broader exception that could apply in “emergency” situations such as Google Books case.
The ALRC also suggested, in its report last year, an alternative to fair use; the consolidation and expansion of existing fair dealing exceptions. Maybe this could be a starting point for a discussion?
One of the problems Google Books faced was the difficulty in finding all the copyright holders of a work and signing a contract with each of them. The Google Book Settlement was meant to ensure that all copyright holders whose books were used in Google Books were remunerated.
Wouldn’t it make sense to create licensing solutions that would make it easier for such projects as Google Books to get licenses and pay fees for millions of authors and publishers? Authors would then get paid and the global service would stay running for all to use.
Google(s goog) has won a resounding victory in its eight-year copyright battle with the Authors Guild over the search giant’s controversial decision to scan more than 20 million books from libraries and make them available on the internet.
In a ruling (embedded below) issued Thursday morning in New York, US Circuit Judge Denny Chin said the book scanning amounted to fair use because it was “highly transformative” and because it didn’t harm the market for the original work.
“Google Books provides significant public benefits,” Chin wrote, describing it as “an essential research tool” and noting that the scanning service has expanded literary access for the blind and helped preserve the text of old books from physical decay.
Chin also rejected the theory that Google was depriving authors of income, noting that the company does not sell the scans or make whole copies of books available. He concluded, instead, that Google…
At the BookShelf 
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